01-8929. Approval and Promulgation of State Implementation Plans; Transportation Conformity: Idaho

AGENCY:

Environmental Protection Agency.

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) approves new sections to the Idaho State Implementation Plan (SIP) that contain the State's transportation conformity rule and an interim transportation conformity rule for the Northern Ada County former nonattainment area for particulate matter under ten microns (PM-10). These new sections to Rules for the Control of Air Pollution in Idaho (IDAPA) include IDAPA sections 58.01.01.563 through IDAPA 58.01.01.574, and IDAPA 58.01.01.582. These sections were submitted as part of a series of revisions to the SIP to EPA on December 6, 2000 and February 9, 2001.

DATES:

This direct final rule is effective on June 11, 2001 without further notice, unless EPA receives adverse comment by May 14, 2001. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Written comments should be addressed to: Mr. Wayne Elson, Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue, Seattle, Washington 98101.

Documents incorporated by reference are available for public inspection at the Air and Radiation Docket and Information Center, Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460. Copies of material submitted to EPA may be examined during normal business hours at the following locations: EPA, Region 10, Office of Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle, Washington 98101, and the Idaho Department of Environmental Quality, 1420 North Hilton, Boise, Idaho 83706-1255.

FOR FURTHER INFORMATION CONTACT:

Mr. Wayne Elson, Office of Air Quality (OAQ-107), EPA, Seattle, Washington 98101, [phone].

SUPPLEMENTARY INFORMATION:

The supplementary information is organized as follows:

I. What SIP Amendments are We Approving?

II. What is Transportation Conformity?

III. How Does Transportation Conformity Work?

IV. Why Must the State have a Transportation Conformity SIP?

V. What is EPA Approving for Transportation Conformity and Why?

VI. How Did the State Satisfy the Transportation Conformity Interagency Consultation Process (40 CFR 93.105)?

VII. Why is EPA Approving an Interim Conformity Rule for the Northern Ada County Former Nonattainment Area for PM-10?

VIII. Summary of Action

IX. Administrative Requirements

I. What SIP Amendments Are We Approving?

The following table outlines the submittal EPA received and is approving in this action

Date of submittal to EPA	Items revised
12-6-2000	—Rules for the Control of Air Pollution in Idaho, Transportation Conformity, IDAPA 58.01.01.563 through IDAPA 58.01.01.574.
2-9-2001	—Interim Conformity Provisions for Northern Ada County Former Nonattainment Area for PM-10, 58.01.01.582.

II. What Is Transportation Conformity?

Conformity first appeared in the Clean Air Act's 1977 amendments (Pub. L. 95-95). Although the Act did not define conformity, it stated that no Federal department could engage in, support in any way or provide financial assistance for, license or permit, or approve any activity which did not conform to a SIP which has been approved or promulgated. The Act's 1990 Amendments expanded the scope and content of the conformity concept by defining conformity to an implementation plan. Section 176(c) of the Act defines conformity as conformity to the SIP's purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of such standards. Also, the Act states that no Federal activity will: (1) Cause or contribute to any new violation of any standard in any area, (2) increase the frequency or severity of any existing violation of any standard in any area, or (3) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area.

III. How Does Transportation Conformity Work?

The Federal or State Transportation Conformity Rule applies to all nonattainment and maintenance areas in the State. The Metropolitan Planning Organizations (MPO), the State Departments of Transportation (in absence of a MPO), and U.S. Department of Transportation make conformity determinations. These agencies make conformity determinations on programs and plans such as transportation improvement programs, transportation plans, and projects. The MPOs calculate the projected emissions for the transportation plans and programs and compare those calculated emissions to the motor vehicle emissions ceiling established in the SIP. The calculated emissions must be smaller than the motor vehicle emissions ceiling for showing a positive conformity with the SIP.

IV. Why Must the State Have a Transportation Conformity SIP?

EPA was required to issue criteria and procedures for determining conformity of transportation plans, programs, and projects to a SIP by section 176(c) of the Act. The Act also required the procedure to include a requirement that each State submit a revision to its SIP including conformity criteria and procedures. EPA published the first transportation conformity rule in the November 24, 1993, Federal Register (FR), and it was codified at 40 CFR part 51, subpart T and 40 CFR part 93, subpart A. EPA first required the States and local agencies to adopt and submit a transportation conformity SIP revision by November 25, 1994. EPA revised the transportation conformity rule on August 7, 1995 (60 FR 40098), November 14, 1995 (60 FR 57179), August 15, 1997 (62 FR 43780), April 10, 2000 (65 FR 18911) and it was codified under 40 CFR part 51, subpart T and 40 CFR part 93, subpart A—Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. or the Federal Transit Laws (62 FR 43780). EPA's action of August 15, 1997, required the States to change their rules and send a SIP revision by August 15, 1998. Idaho submitted their transportation rules on December 6, 2000.

V. What Is EPA Approving Today for Transportation Conformity and Why?

EPA is approving the Idaho Transportation Conformity Rule that the Director of the Idaho Department of Environmental Quality (IDEQ) submitted on December 6, 2000.

In this submittal, IDEQ has adopted the Federal rules by “incorporation by reference” (except for the interagency consultation section 40 CFR 93.105 where they customized the rules for Idaho and those sections affected by court decisions subsequent to the Federal rule published on August 15, 1997 (62 FR 43780). Sections IDAPA 58.01.01.107(p) and IDAPA 58.01.01.564 include these exceptions.) “Incorporation by Reference” (IBR) means that the State adopted the Federal rules without rewriting the text of the Federal rules but by referring to them for inclusion as if they were printed in the state regulation. The Federal Transportation Conformity Rule required the states to adopt a majority of the Federal rules in verbatim form with a few exceptions. The States cannot make their rules more stringent than the Federal rules unless the State's rules apply equally to non-federal entities as well as Federal entities. The Idaho Transportation Conformity Rule is the same as the Federal rule and the State has made no additional changes or modifications, with the exception of the consultation section. EPA has evaluated this SIP revision and has determined that the State has fully adopted the Federal Transportation Conformity rules as described in 40 CFR part 51, subpart T and 40 CFR part 93, subpart A. Also, the IDEQ has completed and satisfied the public participation and comprehensive interagency consultations during development and adoption of these rules at the local level. Therefore, EPA is approving this SIP revision.

VI. How Did the State Satisfy the Transportation Conformity Interagency Consultation Process (40 CFR 93.105)?

EPA's rule requires the States to develop their own processes and procedures for interagency consultation among the Federal, State, and local agencies and resolution of conflicts meeting the criteria in 40 CFR 93.105. The SIP revisions must include processes and procedures to be followed by the MPO, state and local transportation agencies, and the U.S. Department of Transportation (USDOT) in consulting with the State and local air quality agencies and EPA before making conformity determinations. Also, the transportation conformity SIP revision must have processes and procedures for the State and local air quality agencies and EPA in coordinating development of applicable SIPs with MPOs, transportation agencies, and USDOT. The State developed its own consultation rule based on the elements in 40 CFR 93.105, and excluded this section from IBR.

The Idaho consultation rule specifically addresses interagency consultation procedures for an Interagency Consultation Committee (ICC). Consultation is required for development of implementation plans under the Clean Air Act; conformity determinations for plans, projects, and programs; and revisions to these documents that affect conformity. The ICC consists of the MPO, Idaho Transportation Department (ITD), Federal Highway Administration, Federal Transit Administration, IDEQ, affected Local Highway Jurisdictions involved in transportation, affected Transit agencies, Local Highway Technical Assistance Council (LHTAC), Indian Tribal governments with transportation planning responsibilities, and the U.S. EPA. Other affected transportation agencies are entitled to participate as well. The rule identifies actions requiring consultation, ICC member roles, ICC member responsibilities, general consultation process, consultation process and review procedures, conflict resolution, and public consultation.

VII. Why Is EPA Approving an Interim Conformity Rule for the Northern Ada County Former Nonattainment Area for PM-10?

As mentioned above, the State and Federal Conformity Rules apply to all nonattainment and maintenance areas in the State. Northern Ada County was designated as a nonattainment area for PM-10 under the Clean Air Act Amendments of 1990. In March of 1999, however, EPA revoked the nonattainment designation and 1987 PM-10 National Ambient Air Quality Standard for this area (64 FR 12257, March 12, 1999). As a result, the Federal conformity requirements for PM-10 no longer applied. Soon after, a petition for review was filed in the Ninth Circuit Court of Appeals to challenge EPA's action revoking the nonattainment designation and the PM-10 standard for Northern Ada County (Idaho Clean Air Force et al. v. EPA et al. Nos. 99-70289 and 99-70576 (9th Cir)). As part of the settlement of this lawsuit, Idaho submitted and EPA is taking action on an interim transportation conformity rule (IDAPA 58.01.01.582) for the area. (See notice of Proposed Settlement for a general description of the settlement (66 FR 8229, January 30, 2001). Among other things, the interim transportation rule requires that the growth in transportation related PM-10 emissions be offset annually in the absence of federal transportation conformity requirements in Northern Ada County. Specifically, the rule requires the adoption of new control measures that would achieve emissions reductions of two thousand (2000) kg/day during the initial fiscal year during which these provisions apply and a minimum of seven hundred fifty (750) kg/day (in addition to the reductions required during previous years) during each of the subsequent years. This rule applies to Northern Ada County for the interim period specified under the settlement.

EPA approves IDAPA 58.01.01.582 for the Northern Ada County former PM-10 nonattainment area because it provides for PM-10 emissions reductions that would not otherwise be required for Northern Ada County and because it strengthens the PM-10 emissions-related requirements in the State's SIP. In addition, this rule reflects an agreement with stakeholders, representing environmental, state, and local interests, during the negotiation of the settlement of Idaho Clean Air Force, et al. v. EPA, et al., indicating widespread support of the rule.

VIII. Summary of Action

EPA approves new sections to Idaho's State Implementation Plan (SIP) that contain the transportation conformity rule for nonattainment areas and an interim transportation conformity rule for Northern Ada County former PM-10 nonattainment area. These new sections to Rules for the Control of Air Pollution in Idaho (IDAPA) include IDAPA sections 58.01.01.563 through IDAPA 58.01.01.574, and IDAPA 58.01.01.582.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective June 11, 2001 without further notice unless the Agency receives adverse comments by May 14, 2001.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on June 11, 2001 and no further action will be taken on the proposed rule.

IX. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective June 11, 2001 unless EPA receives adverse written comments by May 14, 2001.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 11, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping requirements

Dated: March 9, 2001.

Ron Kreizenbeck,

Acting Regional Administrator, Region 10.

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for Part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart N—Idaho

2. Section 52.670 is amended by adding paragraphs (c)(32) and (c)(33) to read as follows:

§ 52.670

Identification of plan.

* * * * *

(c) * * *

(32) On December 6, 2000, the Idaho Department of Environmental Quality submitted amendments to State of Idaho's Rules and Regulations for the Control of Air Pollution in Idaho as revisions to the Idaho state implementation plan as follows: sections 58.01.01.563 through 58.01.01.574.

(i) Incorporation by reference.

(A) Section 58.01.01.563 Transportation Conformity, Section 58.01.01.564 Incorporation by Reference, Section 58.01.01.565 Abbreviations, Section 58.01.01.566 Definitions for the Purpose of Sections 563 Through 574 and 582, Section 58.01.01.567 Agencies Affected by Consultation, Section 58.01.01.568 ICC Member Roles in Consultation, Section 58.01.01.569 ICC Member Responsibilities in Consultation, Section 58.01.01.570 General Consultation Process, Section 58.01.01.571 Consultation Procedures, Section 58.01.01.572 Final Conformity Determinations by USDOT, Section 58.01.01.573 Resolving Conflicts, Section 58.01.01.574 Public Consultation Procedures.

(33) On February 9, 2001, the Idaho Department of Environmental Quality submitted amendments to State of Idaho's Rules and Regulations for the Control of Air Pollution in Idaho as revisions to the Idaho state implementation plan as follows:

Section 58.01.01.582

(i) Incorporation by reference.

(A) Section 58.01.01.582 Interim Conformity Provisions for Northern Ada County Former Nonattainment Area for Northern Ada County Former Nonattainment Area for PM-10.